SL SC | “Due Diligence necessary for exemption under Supreme Court Rules, 1990”; appeal rejected

Supreme court of Sri Lanka: The Full Bench of Justice Vijith K. Malalgoda, PC, Justice S. Thurairaja, PC and Justice E. A. G. R. Amarasekara, JJ., while rejecting the appeal filed by Defendent-Petitioner upheld the statement of preliminary objection raised by Plaintiff- respondent under Rule (2) and Rule (6) of the Supreme Court Rules 1990 with regard to the maintainability of the instant application.

The Plaintiff-Respondent had instituted an action before the District Court of Ratnapura against the Defendant-Petitioner seeking a declaration that the Plaintiff-Respondent is the State land grantee of the land described in the 1st schedule of the Plaint and to eject the Defendant and all under him from the said portion of land and grant damages in a sum of Rs. 50,000 with cost for litigation. The Defendant-Petitioner sought dismissal with a cross claim of Rs. 50,000 with cost for litigation when filing the answer. At the conclusion of the trial, the learned District Judge delivered the Judgment by dismissing the Plaintiff’s action as well as the counter claim by the Defendant-Respondent. In the light of the position taken by the Defendant-Petitioner referred to above, I will now consider the preliminary objection raised by the Plaintiff-Respondent.

When raising the objection on behalf of the Plaintiff-Respondent it was submitted that, material documents have not been annexed with the Application filed before the Supreme Court and as a result, the Defendant-Petitioner has violated Rules (2) and (6) of the Supreme Court Rules 1990, which are mandatory and requires compliance by a petitioner who is invoking the Jurisdiction of the Supreme Court.

The Court while relying upon the judgment of Supreme Court in Priyanthi Chandrika Jinadasa v. Pathma Hemamali, SC (HC) CALA 99/2008 {2011] 1 Sri LR 337 held that “When deciding that an application for Leave to Appeal from the High Court (Civil Appeal) of the Provinces to the Supreme Court should be filed within 42 days from the date of the judgment.” The Court further held that the Defendant-Petitioner had neither reserved any right to file additional documents nor have they adduced any reasons for the default for the failure to exercise due diligence in obtaining such document.

Thus, the Court upheld the preliminary objection raised by the Plaintiff-Respondent and dismissed the application with no costs.[Kombu Mudiyanselage Thanuja Dilhani v. Suriya Arachchige Inoka Udayangani, SC/HCCA/LA 303/2019, decided on- 17-12-2021]


Suchita Shukla, Editorial Assistant has reported this brief.


Appearance:

 Tharanga Edirisinghe with Nilusha Silva for the Defendant-Respondent-Petitioner

Seevali Amitirigala, PC, with Pathum Wijepala for the Plaintiff-Appellant-Respondent

Join the discussion

Leave a Reply

Your email address will not be published. Required fields are marked *

This site uses Akismet to reduce spam. Learn how your comment data is processed.